sustained EB-3 Case: Retail Management

identifying data ddelaed to 
prevent cledi-ly u; s v :ircm-"ted 
invasion of persod privacy 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
P uaLi@ COPY 
Office: TEXAS SERVICE CENTER Date: MGv 1 5 200b 
SRC 05 053 50521 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to 
section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
kobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office on appeal. The appeal will be sustained. 
The petitioner is a convenience store limited liability company.' 
 It seeks to employ the beneficiary 
permanently in the United States as a manager. As required by statute, the petition is accompanied by a Form 
ETA 750, Application for Alien Employment Certification, approved by the U. S. Department of Labor. The 
director determined that the petitioner had not established that it had the continuing ability to pay the 
beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the 
petition accordingly. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing slulled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. 
 Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The regulation at 8 CFR 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for ths 
classification are at least two years of training or experience. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. The petitioner must 
also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 
1 
The limited liability company was established on January 15,2002. 
Application for Alien Employment Certification as certified by the U.S. Department of Labor and submitted with 
the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on June 5, 2003. The proffered wage as stated on the Form ETA 750 
is $23,000.00 per year. The Form ETA 750 states that the position requires two years experience. 
On appeal, counsel submits additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal 
Revenue Service Form tax return for 2003; an unaudited financial statement; documents concerning the 
limited liability company organization; and, copies of documentation concerning the beneficiary's 
qualifications as well as other documentation. 
The director denied the petition on January 26,2005, finding that the evidence submitted did not establish that 
the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
The petitioner is a limited liability company (LLC). Although structured and taxed as a partnership, its owners 
enjoy limited liability similar to owners of a corporation. A LLC, like a corporation is a legal entity separate and 
distinct from its owners. The debts and obligations of the company generally are not the debts and obligations of 
the owners or anyone else.* An investor's liability is limited to hs or her initial investment. As the owners and 
others only are obliged to pay a certain portion of those debts should they come due, the total income and assets 
of the owners and others and their ability, if they wished, to pay the company's debts and obligations, cannot be 
utilized to demonstrate the petitioner's ability to pay the proffered wage. The petitioner must show the ability to 
pay the proffered wage out of its own funds. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner employed and paid the beneficiary 
during that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a 
salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or 
other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay 
the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F.Supp. 
1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 , (9th Cir. 
1984) ); see also Chi-Feng Chang v. Thornburgh, 7 19 F.Supp. 532 (N.D. Texas 1989); K. C. P. Food Co., Inc. 
v. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F.Supp. 647 (N.D. Ill. 1982), affd, 703 
F.2d 571 (7th Cir. 1983). In K. C.P. Food Co., Inc. v. Sava, the court held that the Service had properly relied 
on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than the 
petitioner's gross income. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
Although this general rule might be amenable to alteration pursuant to contract or otherwise, no 
evidence appears in the record to indicate that the general rule is inapplicable in the instant case. 
Page 4 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 53 7. See also Elatos Restaurant Corp. v. Suva, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $23,000.00 per year from the priority date of June 5,2003: 
In 2003, the Form 1120s stated taxable income loss3 of <$24,049.00>~. 
In 2004, the Form 1120s stated taxable income of $29,880.00. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at in the tax year 2003 for which the petitioner's tax returns are offered for evidence. 
CIS will consider net current assets as an alternative method of demonstrating the ability to pay the proffered 
wage. Net current assets are the difference between the petitioner's current assets and current liabilities.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each 
of those returns indicates the following: 
In 2003, petitioner's Form 1120s return stated current assets of $62,423.00 and $22,626.00 in 
current liabilities. Therefore, the petitioner had $39,797.00 in net current assets. Since the 
proffered wage is$23,000.00 per year, this sum is more than the proffered wage. 
In 2004, petitioner's Form 1120s return stated current assets of $45,432.00 and $16,349.00 in 
current liabilities. Therefore, the petitioner had $29,083.00 in net current assets. Since the 
proffered wage is $23,000.00 per year, this sum is more than the proffered wage. 
Therefore, for the period 2003 through 2004 from the date the Form ETA 750 was accepted for processing by 
the U. S. Department of Labor, the petitioner had established that it had the ability to pay the beneficiary the 
proffered wage at the time of filing through an examination of its net current assets. 
The evidence submitted does establish that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
3 
 IRS Fonn 1 120S, Line 2 1. 
4 
The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
5 
According to Barron S Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Page 5 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
8 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained.